Najib’s Defamation Claims Latest Attack on Malaysiakini

“Prime Minister Najib’s heavy-handed efforts to compel a critical website to toe the line displays a fundamental disregard for press freedom. Najib should recognize that being a political leader means being tough enough to take public criticism from voters and the media.”

Phil Robertson, deputy Asia director

(Bangkok) – Malaysia’s prime minister should end efforts to sue a leading online newspaper for publishing critical reader comments, Human Rights Watch said today. Prime Minister Najib Tun Razak initiated legal action on May 15, 2014, seeking damages from the website Malaysiakini and demanding it apologize, retract the columns, and promise not to publish such comments in the future.

“Prime Minister Najib’s heavy-handed efforts to compel a critical website to toe the line displays a fundamental disregard for press freedom,” said Phil Robertson, deputy Asia director. “Najib should recognize that being a political leader means being tough enough to take public criticism from voters and the media.”

Government officials in Malaysia have long resorted to private lawsuits and draconian state laws to restrict freedom of expression and the media.

Najib’s actions were in response to May 13 and 14 posts on Malaysiakini’s “Your Say” columns. One column, “A case of the PM reaping what he sows,” implies that Najib has been a failure as a leader. Another column, “How much will Najib spend to keep Terengganu?” suggests that there has been corruption in the government.
Following Najib’s threat to sue for damage to his public image, Malaysiakini Editor-in-Chief Steven Gan said publicly, “yes, we are going to fight it.” He told Human Rights Watch that “we are standing our ground.”

Malaysiakini is the largest web-based newspaper in Malaysia, read daily by 400,000 unique visitors. It frequently reports on human rights issues in the country and has been consistently outspoken and critical of the government.

The Malaysian government has previously sought to restrict Malaysiakini’s reach as a news outlet. In 2010, the government turned down a Malaysiakini application for a publishing and printing license without offering a reason for the refusal. Under Malaysia’s Printing Presses and Publications Act, all printed publications must have a government-issued license, which the minister of home affairs is empowered to withhold at will.

Malaysiakini challenged that decision in court, and two years later the Kuala Lumpur High Court found that a license to print is a right, not a privilege, and ruled in favor of Malaysiakini. The subsequent government appeal to the Court of Appeal was rejected in 2013 on the same grounds as those of the High Court. As the time limit for an appeal to the Federal Court, Malaysia’s highest court, has passed, Malaysiakini has now again applied for a license for a print edition.

“The Malaysian government should end its arbitrary and punitive treatment of Malaysiakini, and grant it a license to start a print edition without delay,” Robertson said. “Using printing licenses to restrict journalistic coverage critical of the government violates freedom of the press.”

International law, as reflected in article 19 of the Universal Declaration of Human Rights on freedom of expression, permits defamation suits but places restrictions on their use, particularly for cases brought by government officials. Such restrictions need to be provided for by law; be done for the purpose of protecting specified public interests, such as national security, public order, or the reputations of others; and be demonstrably necessary and proportionate.

The United Nations Human Rights Committee, an international expert body that interprets the International Covenant on Civil and Political Rights, in its general comment on the right to freedom of expression, said that “[t]he penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the government can never be considered to be a necessary restriction of freedom of expression.” Moreover, the committee stated that with respect to public debate concerning public figures, the value of “uninhibited expression is particularly high.” Therefore, “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.” The committee said that “all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.”

Additionally, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, an influential set of principles issued in 1996 by international legal experts, state that “No one may be punished for criticizing or insulting … public officials, … unless the criticism or insult was intended and likely to incite imminent violence.”

In a May 26, 2014 speech, Najib claimed that his recent legal actions were “not part of any crackdown; it is not an attempt to silence critical voices.” However, his justification appears to do just that. “In a democracy, there will always be people who disagree with your policies, or disapprove of your government. I welcome criticism which is informed and constructive. But there is a difference between legitimate criticism, and defamation.”

Najib’s remarks suggest that defamation is defined as any statement not deemed “legitimate” and provides no allowance for public officials to be subjected to a greater range of criticism.

“Elected Malaysian government officials should not act as if they have a monopoly on truth,” Robertson said. “Holding public office involves a responsibility to listen to opposing views, not suing a media outlet for opinions expressed by readers to a website.”